Page   1
 
            
 
            
 
            
 
            
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            KEN D. GILE,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 850778/881063
 
            DIERCKS, LTD., and            :
 
            MAHLER CONCRETE,              :
 
                                          :           A P P E A L
 
                 Employers,               :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA MUTUAL INSURANCE and     :
 
            FIREMAN'S FUND INSURANCE COS.,:
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
                              statement of the case
 
            
 
                 Defendants, Mahler Concrete and Fireman's Fund 
 
            Insurance Companies (hereinafter Mahler) appeal and claimant 
 
            cross-appeals from an arbitration decision awarding claimant 
 
            temporary total disability benefits as a result of 
 
            claimant's April 6, 1987 work-related injury and awarding 
 
            claimant healing period benefits and permanent partial 
 
            disability benefits as a result of claimant's July 24, 1987 
 
            work-related injury.
 
            
 
                 The record on appeal consists of the transcript of the 
 
            arbitration hearing; joint exhibits 1 through 5; 
 
            defendant-Diercks' exhibits A through D and F; and 
 
            defendant-Mahler's exhibits A-F.  Mahler and claimant filed 
 
            briefs on appeal.  Mahler filed a reply brief.
 
            
 
                                      issues
 
            
 
                 Defendant Mahler states the issues on appeal are:
 
            
 
                 1.  The proposed decision of the deputy industrial 
 
                 commissioner is contrary to record evidence, is 
 
                 not supported by substantial evidence in the 
 
                 record made before the agency when viewed as a 
 
                 whole, and is in error as a matter of law, 
 
                 improperly assessing the entire award of permanent 
 
                 impairment against the defendant, Mahler Concrete.
 
            
 
                 2.  The deputy erred in finding that claimant met 
 
                 his burden of proving by a preponderance of the 
 
                 evidence that he received an injury of July 24, 
 
                 1987, which arose out of and in the course of his 
 
                 employment with Mahler Concrete which resulted in 
 

 
            
 
            Page   2
 
            
 
            
 
            
 
            
 
                 permanent impairment.
 
            
 
                 Claimant states the issue on cross-appeal is:
 
            
 
                 II.  The Deputy Industrial Commissioner erred in 
 
                 her assessment of Claimant's industrial disability 
 
                 due to a misinterpretation of evidence concerning 
 
                 Claimant's return to work in June of 1988 as 
 
                 unrestricted, rather than on a restricted basis.
 
            
 
                              review of the evidence
 
            
 
                 The arbitration decision filed February 28, 1990 
 
            adequately and accurately reflects the pertinent evidence 
 
            and it will not be reiterated herein.
 
            
 
                                  applicable law
 
            
 
                 The citations of law in the arbitration decision are 
 
            appropriate to the issues and evidence.  The following 
 
            additional citation is appropriate to the issue of 
 
            apportionment:
 
            
 
                 We have made it clear that apportionment is 
 
            
 
                 [limited] to those situations where a prior injury 
 
                 or illness, unrelated to the employment, 
 
                 independently produces some ascertainable portion 
 
                 of the ultimate industrial disability which exists 
 
                 following the employment related aggravation.  
 
                 Varied Enters., Inc. v. Sumner, 353 N.W.2d 407, 
 
                 411 (Iowa 1984).  (Citations omitted.)
 
            
 
                 As Larson puts it:
 
            
 
                      Nothing is better established in 
 
                      compensation law than the rule that, 
 
                      when industrial injury precipitates 
 
                      disability from a latent prior 
 
                      condition, such as heart disease, 
 
                      cancer, back weakness and the like, the 
 
                      entire disability is compensable, and 
 
                      except in states having special statues 
 
                      on aggravation of disease, no attempt is 
 
                      made to weigh the relative contribution 
 
                      of the accident and the preexisting 
 
                      condition to the final disability or 
 
                      death.  Apportionment does not apply in 
 
                      such cases, nor in any case in which the 
 
                      prior condition was not a disability in 
 
                      the compensation sense.
 
            
 
                 2A. Larson, The Law of Workmen's Compensation, 
 
                 section 59.22(a), at 10-371-76 (1989) (emphasis 
 
                 added).
 
            
 
                    ....
 
            
 
                 The distinction between functional disability or 
 
                 impairment and industrial disability is critical 
 

 
            
 
            Page   3
 
            
 
            
 
            
 
            
 
                 in understanding Larson's statement that 
 
                 apportionment does not apply to a "prior condition 
 
                 [which] was not a disability in the compensation 
 
                 sense."  By this statement Larson means 
 
                 apportionment is not applied to an impairment that 
 
                 prior to the accident had no effect on the 
 
                 employee's ability to earn wages.  Simply put, the 
 
                 "disability" Larson is talking about is industrial 
 
                 disability and not simply functional disability.
 
            
 
            Bearce v. FMC Corp., 465 N.W.2d 531, 535 (Iowa 1991).
 
            
 
                                     analysis
 
            
 
                 The analysis of the evidence in conjunction with the 
 
            law in the arbitration decision is adopted with the 
 
            following additional analysis.  
 
            
 
                 Claimant has proven by a preponderance of the evidence 
 
            that he sustained an injury on April 6, 1987 which arose out 
 
            of and in the course of his employment with defendant 
 
            Diercks and an injury on July 24, 1987 which arose out of 
 
            and in the course of his employment with defendant Mahler.  
 
            
 
                 Claimant was released by John Hoffman, M.D., to return 
 
            to full duty following the April 6, 1987 work injury.  
 
            Claimant began working for defendant Mahler with no 
 
            restrictions.  Claimant sought no medical treatment for his 
 
            back between the time of his April 6, 1987 work injury and 
 
            the July 24, 1987 work injury.  The July 24, 1987 work 
 
            injury materially aggravated claimant's preexisting back 
 
            problem to the point where claimant needed surgery.  "When 
 
            employees are hired, employers take them subject to any 
 
            active or dormant health impairments incurred prior to 
 
            employment."  Zeigler v. United States Gypsum Co., 252 Iowa 
 
            613, 620, 106 N.W.2d 591, 595 (1960).  Apportionment is not 
 
            proper in this case as claimant was released to full duty 
 
            following the April 6, 1987 work injury.  Claimant was not 
 
            disabled for industrial purposes following the April 6, 1987 
 
            work injury.  It was only after claimant sustained the July 
 
            24, 1987 work injury did he need surgery.  Any industrial 
 
            disability which claimant sustained is a result of the July 
 
            24, 1987 work injury.
 
            
 
                 Claimant was born August 29, 1960 and was twenty-six at 
 
            the time of his injury with defendant Mahler.  Claimant 
 
            completed the tenth grade and has not obtained a GED.  
 
            Claimant started working for defendant Diercks at age 
 
            seventeen.  Claimant's work experience consists of physical 
 
            labor.  Claimant had been treated by a chiropractor prior to 
 
            his April 6, 1987 work injury but had not received treatment 
 
            for a number of years.  Following claimant's April 6, 1987 
 
            work injury, Dr. Hoffman released claimant with no 
 
            limitations on his activities.  Dr. Hoffman performed a 
 
            laminectomy on October 14, 1987 at the L5-S1 level.  On 
 
            August 30, 1988, Dr. Hoffman opined that claimant sustained 
 
            nine percent permanent impairment of the whole person, half 
 
            of which he attributed to claimant's April 6, 1987 work 
 
            injury and half to the July 24, 1987 work injury.  Dr. 
 
            Hoffman released claimant to return to work following the 
 

 
            
 
            Page   4
 
            
 
            
 
            
 
            
 
            July 24, 1987 work injury with no restrictions.  Claimant 
 
            testified that he limited his activities due to back pain 
 
            following the July 24, 1987 work injury.  Claimant earned 
 
            $10.50 an hour prior to his injury while he was working for 
 
            defendant Mahler and $7.50 an hour while working for 
 
            defendant Diercks.  At the time of the hearing, claimant had 
 
            been working in a sheet metal shop earning $8.72 an hour.  
 
            Claimant was laid off at the time of the hearing.  
 
            
 
                 Claimant proved by a preponderance of the evidence 
 
            entitlement to 15 percent permanent partial disability 
 
            benefits as a result of the July 24, 1987 work injury.
 
            
 
                                 findings of fact
 
            
 
                 1.  Claimant sustained an injury to his lower back 
 
            which arose out of and in the course of his employment with 
 
            defendant Diercks on April 6, 1987.
 
            
 
                 2.  Claimant was temporarily disabled as a result of 
 
            his work injury on April 6, 1987.
 
            
 
                 3.  Dr. Hoffman released claimant to return to work 
 
            without restrictions following the April 6, 1987 work 
 
            injury.
 
            
 
                 4.  Claimant sustained an injury to his lower back on 
 
            July 24, 1987 which arose out of and in the course of his 
 
            employment with defendant Mahler.
 
            
 
                 5.  As a result of the July 24, 1987 work injury, 
 
            claimant underwent a laminectomy at the L5-S1 level.
 
            
 
                 6.  Claimant was born August 29, 1960 and completed the 
 
            tenth grade.
 
            
 
                 7.  Claimant began working for defendant Diercks at age 
 
            seventeen.  Claimant's work experience is in the area of 
 
            heavy labor.
 
            
 
                 8.  Claimant earned $10.50 an hour working for the 
 
            defendant Mahler at the time of the July 24, 1987 work 
 
            injury.  After surgery, claimant obtained a position with a 
 
            sheet metal shop earning $8.72 an hour but was laid off at 
 
            the time of the hearing.
 
            
 
                 9.  Dr. Hoffman, following claimant's surgery, released 
 
            claimant to return to work without restrictions.  The only 
 
            limits on claimant's activities are those he places upon 
 
            himself.
 
            
 
                 10.  Dr. Hoffman opined that claimant sustained nine 
 
            percent permanent impairment of the whole person, half of 
 
            which he attributed to claimant's April 6, 1987 work injury 
 
            and the half to the July 24, 1987 work injury.
 
            
 
                 11.  Claimant experienced a 15 percent reduction in his 
 
            earning capacity as a result of the July 24, 1987 work 
 
            injury.
 
            
 

 
            
 
            Page   5
 
            
 
            
 
            
 
            
 
                                conclusions of law
 
            
 
                 Claimant proved by a preponderance of the evidence that 
 
            he sustained a work-related injury to his lower back on 
 
            April 6, 1987 while working for defendant Diercks and a 
 
            work-related injury to his lower back on July 24, 1987 while 
 
            working for defendant Mahler.
 
            
 
                 Defendant Mahler is liable for the entire amount of 
 
            claimant's industrial disability following the July 24, 1987 
 
            work injury.  Claimant was not disabled for industrial 
 
            purposes following the April 6, 1987 work injury. 
 
            
 
                 Claimant proved by a preponderance of the evidence 
 
            entitlement to 15 percent permanent partial disability 
 
            benefits as a result of the July 24, 1987 work injury.
 
            
 
                 WHEREFORE, the decision of the deputy is affirmed and 
 
            modified.
 
            
 
                                       order
 
            
 
                 THEREFORE, it is ordered:
 
            
 
                 That defendant Diercks shall pay unto claimant 
 
            temporary total disability benefits from April 6, 1987 to 
 
            June 15, 1987 at the rate of two hundred forty-six and 
 
            43/100 dollars ($246.43) per week as a result of the April 
 
            6, 1987 work injury.
 
            
 
                 That defendant Mahler shall pay unto claimant healing 
 
            period benefits from July 28, 1987 to January 11, 1988 at 
 
            the rate of two hundred sixty-nine and 48/100 dollars 
 
            ($269.48) per week as a result of the injury on July 24, 
 
            1987.
 
            
 
                 That defendant Mahler shall pay unto claimant 
 
            seventy-five (75) weeks of permanent partial disability 
 
            benefits at the rate of two hundred sixty-nine and 48/100 
 
            dollars ($269.48) per week as a result of the injury on July 
 
            24, 1987.
 
            
 
                 That payments that have accrued shall be paid in a lump 
 
            sum together with statutory interest pursuant to Iowa Code 
 
            section 85.30.
 
            
 
                 That defendants are given credit for all benefits 
 
            previously paid.
 
            
 
                 That defendant Mahler shall pay the cost of this action 
 
            including the costs of transcription of the arbitration 
 
            hearing.
 
            
 
                 That defendants file claim activity reports pursuant to 
 
            rule 343 IAC 3.1(2).
 
            
 
                 Signed and filed this ____ day of October, 1991.
 
            
 
            
 
            
 

 
            
 
            Page   6
 
            
 
            
 
            
 
            
 
            
 
                                          
 
            ________________________________
 
                                                   BYRON K. ORTON
 
                                              INDUSTRIAL COMMISSIONER
 
            
 
            Copies To:
 
            
 
            Mr. Michael W. Liebbe
 
            Attorney at Law
 
            P.O. Box 339
 
            Davenport, Iowa 52805-0339
 
            
 
            Ms. Dorothy L. Kelley
 
            Attorney at Law
 
            500 Liberty Building
 
            Des Moines, Iowa 50309
 
            
 
            Mr. J. Hobart Darbyshire
 
            Attorney at Law
 
            1000 1st Bank Center
 
            201 West Second St.
 
            Davenport, Iowa 52801
 
            
 
 
            
 
 
 
 
 
 
 
 
 
 
 
            5-1803, 5-1806
 
            Filed October 31, 1991
 
            Byron K. Orton
 
            MAM
 
            
 
                     before the iowa industrial commissioner
 
            ____________________________________________________________
 
            _____
 
                                          :
 
            KEN D. GILE,                  :
 
                                          :
 
                 Claimant,                :
 
                                          :
 
            vs.                           :
 
                                          :    File Nos. 850778/881063
 
            DIERCKS, LTD., and            :
 
            MAHLER CONCRETE,              :
 
                                          :           A P P E A L
 
                 Employers,               :
 
                                          :         D E C I S I O N
 
            and                           :
 
                                          :
 
            IOWA MUTUAL INSURANCE and     :
 
            FIREMAN'S FUND INSURANCE COS.,:
 
                                          :
 
                 Insurance Carriers,      :
 
                 Defendants.              :
 
            ____________________________________________________________
 
            _____
 
            
 
            5-1803, 5-1806
 
            Claimant has proven by a preponderance of the evidence that 
 
            he sustained an injury on April 6, 1987 which arose out of 
 
            and in the course of his employment with defendant Diercks 
 
            and an injury on July 24, 1987 which arose out of and in the 
 
            course of his employment with defendant Mahler.  
 
            Apportionment is not proper in this case as claimant was 
 
            released to full duty following the April 6, 1987 work 
 
            injury.  Claimant was not disabled for industrial purposes 
 
            following the April 6, 1987 work injury.  It was only after 
 
            claimant sustained the July 24, 1987 work injury did he need 
 
            surgery.  Any industrial disability which claimant sustained 
 
            is a result of the July 24, 1987 work injury.  See, Bearce 
 
            v. FMC Corp., 465 N.W.2d 531 (Iowa 1991).
 
            Claimant proved by a preponderance of the evidence 
 
            entitlement to 15 percent permanent partial disability 
 
            benefits as a result of the July 24, 1987 work injury.
 
            
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEN D. GILE,
 
         
 
              Claimant,
 
         
 
         VS.
 
         
 
                                                    File  No. 850778
 
         DIERCKS,  LTD.,
 
         
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
         
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         IOWA MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         _________________________________________________________________
 
         __________
 
         
 
         KEN D. GILE,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     File  No.  881063
 
         MAHLER CONCRETE,
 
                                                 A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         FIREMAN'S FUND,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
                                   INTRODUCTION
 
         
 
              These are arbitration proceedings brought by Ken D. Gile, 
 
         claimant, against his employers, Diercks, Ltd., and its insurance 
 
         carrier, Iowa Mutual Insurance Company, and Mahler Concrete and 
 
         its insurance carrier, Fireman's Fund, all defendants.  The cases 
 
         were heard by the undersigned on February 7, 1990, in Des Moines, 
 
         Iowa.
 
         
 
              The record consists of the testimony of claimant, the 
 
         testimony of his wife, Diane Gile, and for defendant-Mahler 
 
         Concrete,
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GILE V. DIERCKS, LTD., AND MAHLER CONCRETE 
 
         Page 2
 
         
 
         
 
         there is the testimony of Michael Mahler.  Additionally, the 
 
         record consists of joint exhibits 1-5, defendant-Diercks' exhibit 
 
         A-D, F, and defendant-Mahler's exhibits A-F.
 
         
 
                                      ISSUES
 
         
 
              As a result of the prehearing report and order submitted and 
 
         approved on February 7, 1990, the issues presented by the parties 
 
         are:
 
         
 
              1. Whether claimant received injuries which arose out of and 
 
         in the course of employment;
 
         
 
              2. Whether there are causal relationships between the 
 
         alleged injuries and the disability;
 
         
 
              3. Whether claimant is entitled to temporary 
 
         disability/healing period benefits or permanent partial or total 
 
         disability benefits; and,
 
         
 
              4. What rate, if any, is appropriate.
 
         
 
                                   STIPULATIONS
 
         
 
              Prior to the hearing, the parties entered into a number of 
 
         stipulations.  The stipulations are as follows:
 
         
 
              1. The existence of employer-employee relationships between 
 
         claimant and the respective employers at the time of the alleged 
 
         injuries are stipulated;
 
         
 
              2. The time off work for which claimant now seeks either 
 
         temporary total disability or healing period benefits is 
 
         stipulated to be from April 6, 1987 to June 15, 1987 and from 
 
         July 28, 1987 to January 11, 1988;
 
         
 
              3. The type of permanent disability, if the injuries are 
 
         found to be a cause of permanent disability, is stipulated to be 
 
         an industrial disability to the body as a whole;
 
         
 
              4. That claimant's entitlement to medical benefits under 
 
         section 85.27 (and/or medical evaluation under section 85.39) is 
 
         no longer in dispute; and,
 
         
 
              5. That the following benefits have been previously paid to 
 
         claimant:
 
         
 
              a) Iowa Mutual on behalf of Diercks             $1,496.80
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              b) Fireman's Fund on behalf of Mahler   $7,293.33.
 
         
 
         
 
         
 
         GILE V. DIERCKS, LTD., AND MAHLER CONCRETE
 
         Page 3
 
         
 
         
 
                                 FACTS PRESENTED
 
         
 
              Claimant is 29 years old.  He is married and has two 
 
         children.  Claimant has completed the tenth grade.
 
         
 
              Claimant testified he started working for Mahler 
 
         Concrete/Construction at age 17.  He was hired to do excavation 
 
         work and to pour foundations and walls.
 
         
 
              Claimant stated that in 1986 he was working for Diercks, 
 
         Ltd., but that he had had an argument with Steve Diercks, owner 
 
         of the company.  The argument occurred in November.  Claimant 
 
         stated he did not return to work until April 6, 1987.  According 
 
         to claimant's testimony on that date, he was setting a 
 
         foundation.  He attempted to push against the forms when he felt 
 
         a sharp pain in his back and left leg.  Claimant stated he could 
 
         not work past 2:00 p.m. on that day and he reported the alleged 
 
         injury to his employer.  Claimant stated he was then sent to 
 
         Allen Diercks, D.C., and brother of Steve Diercks.
 
         
 
              Claimant testified in June of 1987, he again began working 
 
         for defendant Mahler Concrete/Construction.  This time claimant 
 
         reported he was paid $10.50 per hour to work in Chicago.
 
         
 
              Claimant indicated the day was a Friday and he was "knocking 
 
         down pins" with a hammer and disassembling whalers.  Claimant 
 
         related he was required to bend over and pick up two three gallon 
 
         buckets of pins and wedges.  Claimant could not determine the 
 
         weight of each of the buckets.  However, he did report he felt a 
 
         snap in his back and a sharp pain down his leg when he picked up 
 
         the buckets.
 
         
 
              The next day, claimant testified, he returned to Iowa.  He 
 
         also went to see Dr. Diercks for a treatment.  The date was July 
 
         25, 1987.  Claimant indicated he returned to Chicago where he 
 
         worked for two more days.  However, claimant related he left 
 
         Chicago because he could hardly move.  Again, upon his return 
 
         home, claimant indicated he went to see Dr. Diercks.  The 
 
         chiropractor referred claimant to John Hoffman, M.D., an 
 
         orthopedic physician.
 
         
 
              Medical records prepared by Dr. Hoffman show that he first 
 
         saw claimant on May 13, 1987.  Dr. Hoffman diagnosed claimant's 
 
         condition as "an episode of radicular type back pain which seems 
 
         to be resolving slowly on its own."  Dr. Hoffman treated claimant 
 
         through June 2, 1987.  Claimant was scheduled to see Dr. Hoffman 
 
         if he could not return to work by the end of June.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Claimant did not return to Dr. Hoffman until September 10, 
 
         1987.  On October 14, 1987, a lumbar laminectomy was performed at 
 
         L5-Sl.  Claimant was released from the hospital and physical
 
         
 
         
 
         
 
         GILE V. DIERCKS, LTD., AND MAHLER CONCRETE
 
         Page 4
 
         
 
         
 
         therapy was prescribed.  As of February 9, 1988, claimant 
 
         informed Dr. Hoffman that he was able to return to work.
 
         
 
              Dr. Hoffman, as of August 30, 1988, determined claimant had 
 
         a functional impairment of nine percent.  Dr. Hoffman also 
 
         opined:
 
         
 
              I agree that it is very difficult to separate out the two 
 
              incidents and I feel that he most likely had a herniated 
 
              disc after the first incident but as is not uncommon, was 
 
              able to improve with conservative therapy.  He then had a 
 
              re-exacerbation which then required surgery.  Certainly, the 
 
              incident was related and the findings were the same for the 
 
              first and second incident.  I would agree that a 50% 
 
              division is reasonable in that the two incidents are clearly 
 
              related, yet the patient did have a significant 
 
              exacerbation.
 
         
 
              Medical records prepared by Dr. Diercks stated in relevant 
 
         portion:
 
         
 
         4-6-87     Ken Gile
 
         C series   C)L-5 area sore/L Buttock thigh Sore/this
 
         X-Ray                                NooN Pushing a wall/(L)SLR 
 
         + 35 degrees (R) SLR + 60
 
         L-5       58/98/ See M.D. for BP/ Reflexes WNL Prp Dil
 
         Support    Eye ROH.WNL/tTBasn/+3-8 Lost/BL5PB/BL6PR2 NPB
 
         Ice
 
         
 
             ...
 
         
 
         7-25-87    Low Back/L Hip Sore/working on walls(last
 
         On        week)7/22/87 ALD/R Hand last 2 fingers slight
 
         workmen's  Numb No onset/unreadable/unreadable/T3-8 Post
 
         comp      BL5PI(R)PB/BL6 BR2 MRB 6-T-L/(R) elbow-wrist T-L
 
         
 
         
 
              Later, Dr. Diercks opined in his letter of September 14, 
 
         1987:
 
         
 
              Ken Giles [sic] was released to the care of Dr. Hoffman on 
 
              5/11/87, after his first injury.  It is our understanding 
 
              that he was released to go back to work with no restrictions 
 
              on 6/15/87.  It is also our understanding from the patient, 
 
              that he was having no back or leg pain until approximately 
 
              7/22/87.
 

 
              
 
 
 
 
 
 
 
 
 
 
 
              
 
              Given the above set of circumstances, it is our opinion this 
 
              is not a continuation of his first injury, but quite 
 
              possibly a new-injury of the same area.
 
         
 
         
 
         
 
         GILE V. DIERCKS, LTD., AND MAHLER CONCRETE
 
         Page 5
 
         
 
         
 
              After claimant was released to return to work, he was hired 
 
         by Shevler Company as a sheet metal worker.  Claimant started at 
 
         $7.72 per hour on July 5, 1988.  Claimant was laid off in mid 
 
         December of 1989.  At the time of his lay off, claimant was paid 
 
         $8.72 per hour.
 
         
 
              Mike Mahler testified he was the owner of Mahler Concrete.  
 
         He reported claimant was hired by Mahler Concrete in June of 1987 
 
         and that Mike Mahler had knowledge of claimant's previous back 
 
         condition.  However, Mr. Mahler explained he hired claimant to do 
 
         whatever claimant was capable of performing within his 
 
         restrictions.
 
         
 
              Mr. Mahler also stated claimant did not report the bucket 
 
         incident to a representative of Mahler Concrete.  According to 
 
         Mahler, claimant only reported pain and stiffness but no specific 
 
         injury was reported.
 
         
 
                                  APPLICABLE LAW
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
         employment.  Section 85.3(l).
 
         
 
              Claimant has the burden of proving by a preponderance of the 
 
         evidence that he received injuries on April 6, 1987 and July 24, 
 
         1987, which arose out of and in the course of his employments.  
 
         McDowell v. Town of Clarksville, 241 N.W.2d 904 (Iowa 1976) ; 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              The injury must both arise out of and be in the course of 
 
         the employment.  Crowe v. DeSoto Consol. Sch. Dist., 246 Iowa 
 
         402, 68 N.W.2d 63 (1955) and cases cited at pp. 405-406 of the 
 
         Iowa Report.  See also Sister Mary Benedict v. St. Mary's Corp., 
 
         255 Iowa 847, 124 N.W.2d 548 (1963) and Hansen v. State of Iowa, 
 
         249 Iowa 1147, 91 N.W.2d 555 (1958).
 
         
 
              The words "out of" refer to the cause or source of the 
 
         injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The words "in the course of" refer to the time and place and 
 
         circumstances of the injury.  McClure v. Union et al. Counties, 
 
         188 N.W.2d 283 (Iowa 1971) ; Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              "An injury occurs in the course of the employment when it is 
 
         within the period of employment at a place the employee may 
 
         reasonably be, and while he is doing his work or something 
 
         incidental to it." Cedar Rapids Comm. Sch.  Dist. v. Cady, 278 
 
         N.W.2d
 
         
 
         
 
         
 
         GILE V. DIERCKS, LTD., AND MAHLER CONCRETE
 
         Page 6
 
         
 
         
 
         298 (Iowa 1979), McClure, 188 N.W.2d 283 (Iowa 1971); Musselman, 
 
         261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injuries arose out of and in the course of his 
 
         employments.  Musselman, 261 Iowa 352, 154 N.W.2d 128 (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injuries occurred at a place where he reasonably may be 
 
         performing his duties.  McClure, 188 N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and the injury.  Crowe, 246 Iowa 402, 68 N.W.2d 63 
 
         (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injuries of April 6, 1987 and July 24, 1987 
 
         are causally related to the disability on which he now bases his 
 
         claim.  Bodish v. Fischer, Inc., 257 Iowa 516, 133 N.W.2d 867 
 
         (1965).  Lindahl v. L. 0. Boggs, 236 Iowa 296, 18 N.W.2d 607 
 
         (1945).  A possibility is insufficient; a probability is 
 
         necessary.  Burt v. John Deere Waterloo Tractor Works, 247 Iowa 
 
         691, 73 N.W.2d 732 (1955).  The question of causal connection is 
 
         essentially within the domain of expert testimony.  Bradshaw v. 
 
         Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              The opinions of experts need not be couched in definite, 
 
         positive or unequivocal language.  Sondag v. Ferris 
 
         Hardware, 220 N.W.2d 903 (Iowa 1974).  An opinion of an expert 
 
         based upon an incomplete history is not binding upon the 
 
         commissioner, but must be weighed together with the other 
 
         disclosed facts and circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867 (1965).  The expert medical evidence must be 
 
         considered with all other evidence introduced bearing on the 
 
         causal connection between the injury and the disability.  
 
         Burt, 247 Iowa 691, 73 N.W.2d 732 (1955).  In regard to medical 
 
         testimony, the commissioner is required to state the reasons on 
 
         which testimony is accepted or rejected.  Sondag, 220 N.W.2d 903 
 
         (1974).
 
         
 
              While a claimant is not entitled to compensation for the 
 
         results of a preexisting injury or disease, the mere existence at 
 
         the time of a subsequent injury is not a defense.  Rose v. John 
 
         Deere Ottumwa Works, 247 Iowa 900, 908, 76 N.W.2d 756, 760-61 
 
         (1956).  If the claimant had a preexisting condition or 
 
         disability that is aggravated, accelerated, worsened or lighted 
 
         up so that it results in disability, claimant is entitled to 
 
         recover. Nicks v. Davenport Produce Co., 254 Iowa 130, 115 N.W.2d 
 
         812, 815 (1962).
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              When an aggravation occurs in the performance of an 
 
         employer's work and a causal connection is established, claimant
 
         
 
         
 
         
 
         GILE V. DIERCKS, LTD., AND MAHLER CONCRETE
 
         Page 7
 
         
 
         
 
         may recover to the extent of the impairment.  Ziegler v. United 
 
         States Gypsum Co., 252 Iowa 613, 620, 106 N.W.2d 591, 595 (1960).
 
         
 
              The Iowa Supreme Court cites, apparently with approval, the 
 
         C.J.S. statement that the aggravation should be material if it is 
 
         to be compensable.  Yeager v. Firestone Tire & Rubber Co., 253 
 
         Iowa 369, 112 N.W.2d 299 (1961); 100 C.J.S. Workmen's 
 
         Compensation sec. 555(17)a.
 
         
 
              Our supreme court has stated many times that a claimant may 
 
         recover for a work connected aggravation of a preexisting 
 
         condition.  Almquist v. Shenandoah Nurseries, 218 Iowa 724, 254 
 
         N.W. 35 (1934).  See also Auxier v. Woodward State Hosp. 
 
         Sch., 266 N.W.2d 139 (Iowa 1978); Gosek v. Garmer and Stiles 
 
         Co., 158 N.W.2d 731 (Iowa 1968); Barz v. Oler, 257 Iowa 508, 133 
 
         N.W.2d 704 (1965); Olson v. Goodyear Service Stores, 255 Iowa 
 
         1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 369, 112 N.W.2d 299 
 
         (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 (1960).
 
         
 
              An employer takes an employee subject to any active or 
 
         dormant health impairments, and a work connected injury which 
 
         more than slightly aggravates the condition is considered to be a 
 
         personal injury.  Ziegler, 252 Iowa 613, 620, 106 N.W.2d 591 
 
         (1960), and cases cited.
 
         
 
              An employee is not entitled to recover for the results of a 
 
         preexisting injury or disease but can recover for an aggravation 
 
         thereof which resulted in the disability found to exist.  
 
         Olson, 255 Iowa 1112, 125 N.W.2d 251 (1963); Yeager, 253 Iowa 
 
         369, 112 N.W.2d 299 (1961); Ziegler, 252 Iowa 613, 106 N.W.2d 591 
 
         (1960). See also Barz, 257 Iowa 508, 133 N.W.2d 704 (1965); 
 
         Almquist, 218 Iowa 724, 254 N.W. 35 (1934).
 
         
 
              The right of a worker to receive compensation for injuries 
 
         sustained which arose out of and in the course of employment is 
 
         statutory.  The statute conferring this right can also fix the 
 
         amount of compensation to be paid for different specific 
 
         injuries, and the employee is not entitled to compensation except 
 
         as provided by the statute.  Soukup v. Shores Co., 222 Iowa 272, 
 
         268 N.W. 598 (1936).
 
         
 
              If claimant has an impairment to the body as a whole, an 
 
         industrial disability has been sustained.  Industrial disability 
 
         was defined in Diederich v. Tri-City Railway Co., 219 Iowa 587, 
 
         593, 258 N.W.2d 899, 902 (1935) as follows: "It is therefore 
 
         plain that the legislature intended the term "disability' to mean 
 
         'industrial disability' or loss of earning capacity and not a 
 
         mere 'functional disability' to be computed in the terms of 
 
         percentages of the total physical and mental ability of a normal 
 
         man."
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GILE V. DIERCKS, LTD., AND MAHLER CONCRETE
 
         Page 8
 
         
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson, 
 
         255 Iowa 1112, 125 N.W.2d 251 (1963).  Barton v. Nevada Poultry, 
 
         253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted.  Loss of earnings caused by a job 
 
         transfer for reasons related to the injury is also relevant.  
 
         These are matters which the finder of fact considers collectively 
 
         in arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc.  
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy or commissioner to 
 
         draw upon prior experience, general and specialized knowledge to 
 
         make the finding with regard to degree of industrial disability.  
 
         See Peterson v. Truck Haven Cafe, Inc., (Appeal Decision, 
 
         February 28, 1985); Christensen v. Hagen, Inc. (Appeal Decision, 
 
         March 26, 1985).  For example, a defendant employer's refusal to 
 
         give any sort of work to a claimant after he suffers his afflic-
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GILE V. DIERCKS, LTD., AND MAHLER CONCRETE
 
         Page 9
 
         
 
         
 
         tion may justify an award of disability.  McSpadden v..Big Ben 
 
         Coal Co., 288 N.W.2d 181 (Iowa 1980).
 
         
 
              Similarly, a claimant's inability to find other suitable 
 
         work after making bona fide efforts to find such work may 
 
         indicate that relief would be granted.  McSpadden, 388 N.W.2d 181 
 
         (Iowa 1980).
 
         
 
                                     ANALYSIS
 
         
 
              Claimant has proven that he has sustained two injuries to 
 
         his back.  In both instances, the injuries arose out of and in 
 
         the course of his respective employments.  The first injury 
 
         occurred on April 6, 1987, while claimant was squaring a wall.  
 
         Claimant was performing prescribed duties on behalf of his 
 
         employer.  He was at a place where it was reasonable he would be 
 
         performing duties.
 
         
 
              With respect to injury two, claimant was also performing 
 
         duties on behalf of his employer.  He was also at a place where 
 
         it was reasonable he would be performing duties.  The injury 
 
         occurred on a Friday during regular working hours.  Claimant 
 
         testified he was unsure of the precise date but that he visited 
 
         Dr. Diercks on the subsequent date.  Dr. Diercks' records 
 
         establish claimant saw the chiropractor on July 25, 1987.  This 
 
         date was a Saturday.  It is therefore the decision of the 
 
         undersigned that the injury occurred on July 24, 1987 rather than 
 
         the alleged date of July 27, 1987.  Claimant's petition is 
 
         amended to reflect that date and no prejudice will result to 
 
         defendant Mahler Concrete.
 
         
 
              Claimant has also established the requisite causal 
 
         connection between the second injury and claimant's condition at 
 
         the time of the hearing.  After the first injury, claimant was 
 
         required to stay off work and to rest his back.  Claimant 
 
         received and was discharged from physical therapy.  Dr. Hoffman 
 
         then released claimant to return to work in June of 1987.  The 
 
         release was without any restrictions.  Claimant returned to work 
 
         on June 22, 1987.  He worked through July 24, 1987 without 
 
         complications.  It was not until after the second injury that 
 
         claimant's herniated disc was discovered.  Prior to the second 
 
         injury, there was no indication claimant would be unable to 
 
         perform construction, including concrete work.  No permanent 
 
         functional impairment was found after the first injury.
 
         
 
              It was after the second injury when surgery was required.  
 
         Prior to that time, physical therapy and conservative therapy 
 
         were prescribed.  A herniated disc was not discovered until 
 
         September of 1987.  After the surgery, Dr. Hoffman assessed a 
 
         nine percent permanent functional impairment to claimant with a 
 
         release to return to work.  The parties stipulated as of January 
 
         11, 1988, claimant was able to return to work.  There was no
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GILE V. DIERCKS, LTD., AND MAHLER CONCRETE
 
         Page 10
 
         
 
         
 
         indication there were permanent restrictions placed upon 
 
         claimant's work environment.
 
         
 
              In light of the foregoing, it is the decision of the 
 
         undersigned that the injury of April 6, 1987, gave rise to 
 
         medical benefits and to temporary total disability benefits but 
 
         the April 6, 1987 injury did not result in any permanency.  
 
         However, the injury of July 24, 1987, did result in medical 
 
         benefits, healing period benefits and permanent partial 
 
         disability benefits.
 
         
 
              With respect to permanency, claimant alleges he has 
 
         sustained an industrial disability.  Claimant returned to work 
 
         for defendant-Mahler Concrete in June of 1988.  He was hired at 
 
         $9.00 per hour to install storm sewers.  Claimant worked in this 
 
         capacity until July 8, 1988.  There is no evidence claimant was 
 
         paid $9.00 per hour because claimant was given a light duty task 
 
         or that claimant was paid a lower rate of pay because of his back 
 
         condition.  Rather, it appears the rate was contingent upon the 
 
         geographical location and the type of job performed.  Claimant 
 
         also voluntarily left the position at defendant-Mahler Concrete.  
 
         No physician informed claimant the job was too strenuous.  
 
         Claimant decided to leave his employment for a position where the 
 
         work was all year round.
 
         
 
              In light of the foregoing, it is the determination of the 
 
         undersigned that claimant has a permanent partial disability to 
 
         the body as a whole in the sum of nine percent.  This finding is 
 
         based on 1) upon the personal observation of claimant; 2) based 
 
         upon claimant's testimony at the hearing; 3) based upon agency 
 
         expertise (Iowa Administrative Procedures Act 17A.14(s)); and 4) 
 
         the considerations mentioned previously.
 
         
 
              The next issue to address is the appropriate rate to use in 
 
         calculating claimant's weekly benefits.  With respect to Diercks, 
 
         Ltd., the weeks involved are from April 6, 1987 to June 15, 1987.  
 
         This is a period of 10.143 weeks.
 
         
 
              Claimant's gross weekly wages are calculated by using 
 
         85.36(l). Because claimant was injured on the first day he 
 
         returned to defendant-Diercks, Ltd., it is imperative to look at 
 
         the prior 13 weeks which are representative.  Those weeks 
 
         commenced with the week of November 17 to November 24.  The week 
 
         of November 25 is not included.  It was not representative of 
 
         claimant's usual work week since Thanksgiving fell during that 
 
         week.  Bonuses were also used to calculate gross weekly wages.  
 
         There was no evidence that the bonuses paid to claimant were 
 
         intermittent or non-representative.  The weeks are as follows:
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
         
 
         
 
         GILE V. DIERCKS, LTD., AND MAHLER CONCRETE
 
         Page 11
 
         
 
         
 
         Week    Pay Period                Earnings
 
          
 
           1  11-17  to  11-24           $  348.75
 
           2  11-10  to  11-16              351.25
 
           3  11-02  to  11-09              213.75
 
           4  10-27  to  11-02              300.00
 
           5  10-20  to  10-26              440.00
 
           6  10-13  to  10-19              405.00
 
           7  10-06  to  10-12              546.23
 
           8  09-22  to  09-28              542.50
 
           9  09-15  to  09-21              386.25
 
          10  09-08  to  09-14              417.50
 
          11  09-01  to  09-07              290.00
 
          12  08-24  to  09-01              271.25
 
          13  08-18  to  08-23              560.00
 
          
 
              Total                      $5,072.48 divided by 13 = 
 
         $390.19 gww
 
         
 
         = $246.43   weekly benefit rate for married with three exemptions
 
         
 
              With respect to Mahler Concrete, claimant's weekly earnings 
 
         are calculated by using section 85.36(7). The last week was not 
 
         considered since the first and last day were not worked.  
 
         However, the week of July 31, 1987 was considered.  It appears 
 
         this represents the week in which claimant was injured.
 
         
 
               Week of                   Earnings
 
          
 
               6-26-87                   $ 50.50
 
               7-03-87                     32.00
 
               7-10-87                     42.75
 
               7-17-87                     30.75
 
               7-24-87                     46.25
 
               7-31-87                     39.50
 
          
 
              Total                      $ 241.75 divided by 6 = 40.29 x 
 
         13 =
 
                                           523.77 x 10.50 per hour =
 
                                         5,499.59.divided by 13 = $423.06
 
                                                   average gww
 
         
 
         $269.48 weekly benefit rate
 
         
 
         See Craig S. Barker v. Dwain Johnson Trucking, Arbitration 
 
         Decision File No. 742287, February 18 1987.
 
         
 
                     FINDINGS OF FACT AND CONCLUSIONS OF LAW
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              WHEREFORE, based on the evidence presented and the 
 
         principles of law previously stated, the following findings of 
 
         fact and conclusions of law are made:
 
         
 
         
 
         
 
         GILE V. DIERCKS, LTD., AND MAHLER CONCRETE
 
         Page 12
 
         
 
         
 
              Finding 1. Claimant sustained a back injury arising out of 
 
         and in the course of his employment with Diercks, Ltd., on April 
 
         6, 1987.
 
         
 
              Finding 2. Claimant sustained a back injury arising out of 
 
         and in the course of his employment with Mahler Concrete on July 
 
         24, 1987.
 
         
 
              Finding 3. Claimant was temporarily totally disabled as a 
 
         result of his work injury on April 6, 1987.
 
         
 
              Conclusion A. Claimant has proven by a preponderance of the 
 
         evidence that he is entitled to 10.143 weeks of temporary total 
 
         disability benefits at the weekly rate of $246.43 per week.
 
         
 
              Finding 4. Claimant had surgery on his back as a result of 
 
         his injury on July 24, 1987.
 
         
 
              Finding 5. Claimant was released to return to work without 
 
         restrictions.
 
         
 
              Conclusion B. Claimant has proven by a preponderance of the 
 
         evidence that he has sustained a permanent partial disability to 
 
         his body as a whole in the amount of nine percent.
 
         
 
              Conclusion C. Claimant has proven by a preponderance of the 
 
         evidence that he is entitled to healing period benefits from July 
 
         28, 1987 to January 11, 1988, a total of 24 weeks, at the rate of 
 
         $269.48 per week.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, defendant-Diercks, Ltd., is to pay unto claimant 
 
         ten point one-four-three (10.143) weeks of temporary total 
 
         disability benefits at the rate of two hundred forty-six and 
 
         43/100 dollars ($246.43) per week as a result of the injury on 
 
         April 6, 1987.
 
         
 
              Defendant-Mahler Concrete is to pay unto claimant 
 
         twenty-four (24) weeks of healing period benefits at the rate of 
 
         two hundred sixty-nine and 48/100 dollars ($269.48). per week as 
 
         a result of the injury on July 24, 1987.
 
         
 
              Defendant Mahler Concrete is to pay unto claimant forty-five 
 
         (45) weeks of permanent partial disability benefits at the rate 
 
         of two hundred sixty-nine and 48/100 dollars ($269.48) per week 
 
         as a result of the injury on July 24, 1987.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              Payments that have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
         
 
         
 
         GILE V. DIERCKS, LTD., AND MAHLER CONCRETE
 
         Page 13
 
         
 
         
 
              Defendants are to be given credit for all benefits 
 
         previously paid.
 
         
 
              Costs of this action are evenly assessed to defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
              Defendants shall file claim activity reports upon payment of 
 
         these awards.
 
         
 
         
 
         
 
         
 
              Signed and filed this 28th day of February, 1990.
 
         
 
         
 
         
 
                                         MICHELLE A. McGOVERN
 
                                         DEPUTY INDUSTRIAL COMMISSIONER
 
         
 
         
 
         
 
         
 
         Copies To:
 
         
 
         Mr. Michael W. Liebbe
 
         Attorney at Law
 
         116 East Sixth St
 
         P 0 Box 339
 
         Davenport  IA  52805
 
         
 
         Mr. J. Hobart Darbyshire
 
         Attorney at Law
 
         1000 First Bank Center
 
         201 West Second St
 
         Davenport IA 52801
 
         
 
         Ms. Dorothy L. Kelley
 
         Attorney at Law
 
         500 Liberty Bldg.
 
         Des Moines IA 50309
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
         
 
 
 
 
 
 
 
 
 
 
 
                                         1100; 1108; 1803; 1806 
 
                                         Filed February 28, 1990 
 
                                         MICHELLE A. McGOVERN
 
         
 
                     BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         KEN D. GILE,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                   File  No.  850778
 
         DIERCKS,  LTD.,
 
                                                  A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         IOWA MUTUAL INSURANCE COMPANY,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         _________________________________________________________________
 
         _______
 
         
 
         KEN D. GILE,
 
         
 
              Claimant,
 
         
 
         VS.
 
                                                     File  No.  881063
 
         MAHLER CONCRETE,
 
                                                   A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         FIREMAN'S FUND,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         
 
         1100; 1108; 1803; 1806
 
         
 
              Claimant sustained two separate work injuries which each 
 
         arose out of and in the course of claimant's separate employment.
 
         
 
         
 
         
 
              After injury number one, claimant was released to return to 
 
         work without restrictions.  Claimant only incurred temporary 
 
         total disability benefits.
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
              After injury number two, a herniated disc was found.  It was 
 
         held that injury number two was the cause of claimant's claimed 
 
         disability.  Claimant sustained a permanent partial disability of 
 
         nine percent as a result of the second injury.
 
         
 
         
 

 
         
 
 
 
 
 
 
 
 
 
 
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH RODDY,
 
         
 
              Claimant,                              File No. 850942
 
         
 
         vs.                                      A R B I T R A T I O N
 
         
 
         ALDI, INC.,                                 D E C I S I O N
 
         
 
              Employer,
 
                                                        F I L E D
 
         and
 
                                                       OCT 23 1989
 
         KEMPER INSURANCE,
 
                                                   INDUSTRIAL SERVICES
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
                              STATEMENT OF THE CASE
 
         
 
              This is a proceeding in arbitration brought by Joseph Roddy, 
 
         claimant, against Aldi, Inc., employer, and Kemper Insurance, 
 
         insurance carrier, to recover benefits under the Iowa Workers' 
 
         Compensation Act as a result of an alleged injury of April 15, 
 
         1987.  This matter came on for hearing before the undersigned 
 
         deputy industrial commissioner on September 14, 1989 and was 
 
         considered fully submitted upon the close of the record.  The 
 
         record in this.case consists of the testimony of claimant, Pamela 
 
         Roddy, claimant's wife, Steve Haight, Bruce Widbin, and Kim 
 
         Patrick; joint exhibits A through E, inclusive; and claimant's 
 
         exhibits 1 through 6, inclusive.
 
         
 
                                   ISSUES
 
         
 
              Pursuant to the prehearing report and order submitted and 
 
         approved September 14, 1989, the following issues are presented 
 
         for resolution:
 
         
 
              1.  Whether claimant sustained an injury on April 15, 1987, 
 
         which arose out of and in the course of his employment;
 
         
 
              2.  Whether the injury is the cause of the disability on 
 
         which claimant now bases his claim;
 
         
 
              3.  Claimant's entitlement to permanent partial disability 
 
         benefits, if any; and
 
         
 
              4.  Claimant's entitlement to Iowa Code section 85.27 
 
         benefits.
 
         
 
                               FACTS PRESENTED
 
         
 
                                                
 
                                                         
 
              Claimant, store manager for one of defendant employer's 
 
         limited assortment grocery stores, testified that on April 15, 
 
         1987, while carrying a case of turkeys into the freezer he fell 
 
         causing the case of turkeys and another case of product to land on 
 
         top of him. Claimant recalled he felt an immediate sharp pain 
 
         across his back and that because he continued to experience such 
 
         pain throughout the day, he "mainly sat at the cash register the 
 
         rest of day" not engaging in any regular stocking duties.  
 
         Claimant stated that the following morning, when he was still in 
 
         pain, he contacted the employer and, after filling out certain 
 
         forms, was advised he could choose his own physician.
 
         
 
              Claimant testified he chose H. N. Polance, D.O., whom he 
 
         described as a "manipulative therapist" who administered a "shot" 
 
         and took x-rays.  Claimant stated that Dr. Polance told him the 
 
         x-rays revealed no "permanent damage" and that another "shot" and 
 
         a CT scan were in order.  Claimant offered that after he had the 
 
         CT scan Dr. Polance told him his problems were "out of his 
 
         ballpark" and referred him to a neurosurgeon.
 
         
 
              Claimant testified he thus came under the care of James R. 
 
         LaMorgese, M.D., who ultimately operated on him on May 27, 1987. 
 
         Claimant recalled that he returned to work September 8, 1987 to 
 
         the same job and fulfilled the same managerial duties he held 
 
         prior to his injury.  Claimant described his return to work as 
 
         "frustrating" and "definitely painful" but maintained that he did 
 
         not communicate these feelings with his supervisors "in order to 
 
         keEp the job."  Claimant stated he worked continuously "without 
 
         missing one day due to sickness" until April 15, 1988 when he was 
 
         discharged.from his employment.
 
         
 
              Claimant testified that approximately one week after his 
 
         separation from employment with defendant he secured employment 
 
         as a route service person with Colonial Bread earning $4.20 per 
 
         hour. Claimant stated he voluntarily left this employment because 
 
         he had "great difficulty driving" the vehicle given him as it had 
 
         no seat belts, it was "too wobbly" and was a "stick."  Claimant 
 
         explained that when his request for better conditions was denied 
 
         him, he left.  Claimant estimated that between April and August 
 
         1988, when he finally secured employment, he filled out 
 
         approximately 50 employment applications and received no offers 
 
         of employment except from Metro Sports, an offer which he 
 
         accepted and where he began working on April 15, 1988.  Claimant 
 
         explained that he is a machine operator for this "silk screening 
 
         outfit," that he works approximately four to five hours per week, 
 
         and that he earns $4.50 per hour plus incentive which generally 
 
         amounts to $52 to $100 per week.  Claimant testified that this 
 
         position requires him to stand for "long periods of time" and 
 
         that after four or five hours his back becomes more painful.
 
         
 
              Claimants stated that currently he experiences constant 
 
         "nerve pinching" in his right leg, continual lower back 
 
         discomfort which increases with activity, and that once or twice 
 
         a week for five or ten minutes he has pain in his left leg and 
 
         that his leg will then "give out for a little bit."  Claimant 
 
                                                
 
                                                         
 
         explained that the amount of household chores he is able to do is 
 
         drastically less now than before his injury, that he cannot lift 
 
         his children without pain, and that he does not engage in any 
 
         recreational sports due to pain.  Claimant estimated that after 
 
         one or two hours of standing his degree of discomfort increases 
 
         tenfold, that he can sit 30 minutes to one hour before 
 
         experiencing discomfort, that he "shies away from" any twisting 
 
         motion, electing to shift his feet instead, that he does no 
 
         bending except at the knees and that he does not "push" himself 
 
         to lift anything over 20 or 25 pounds.  Claimant opined that 
 
         since his injury his condition has not improved but rather has 
 
         "stalemated" and that his pain is constant, becoming more intense 
 
         with any activity.
 
         
 
              On cross-examination, claimant acknowledged that when he was 
 
         released from Dr. LaMorgese's care he was told he could return to 
 
         see the doctor at any time should he have any problems.  
 
         Claimant, who has not returned to see Dr. LaMorgese since the 
 
         time of his release, maintained he had not done so because his 
 
         condition has not gotten any worse and that it is at a 
 
         stalemate.
 
         
 
              Claimant, who had denied on direct examination receiving any 
 
         job offers other than with Colonial Bread and with his present 
 
         employer, admitted he recalled a contact with Quality Chef Foods 
 
         but that he did not consider this an offer of employment because 
 
         it was not for an "established" route although claimant stated he 
 
         "turned down" this opportunity because the company truck which he 
 
         would have driven had a stick shift.
 
         
 
              Claimant offered that notwithstanding Dr. LaMorgese's 
 
         restrictions, he works under self-imposed restrictions meaning he 
 
         does not "push" himself to lift over 40 pounds and had indicated 
 
         in his answers to interrogatories that he did not lift over 20 
 
         pounds.  Claimant stated he "did not care what the doctor said" 
 
         as he goes by his own "pain tolerance."
 
         
 
              Claimant admitted that when he applied for work with 
 
         Colonial Bread he indicated on his application that he had "no 
 
         disability" explaining that he was applying for "bread tray" work 
 
         (for which he felt he had no disability) not truck driving work.  
 
         However, after viewing a copy of his application, claimant 
 
         acknowledged that the position applied for and named on the 
 
         application was for route driver and/or sales.
 
         
 
              Claimant stated he was discharged from his employment 
 
         because, due to his injury, he was a liability to the company 
 
         although he was told he was discharged for having smoked 
 
         marijuana on the job.  Claimant testified that he did not miss 
 
         any work after his return after the injury, that he was not 
 
         reprimanded at any time for the.quality of his work and that he 
 
         met, at all times, the requirements of the job.  Claimant denied 
 
         smoking marijuana at the store, denied knowing anyone who might 
 
         have smoked marijuana at the store and denied ever smelling 
 
         marijuana at the store although he is not "a connoisseur" of its 
 
                                                
 
                                                         
 
         smell. Claimant denied having broken down in front of supervisors 
 
         with an admission of use of marijuana.  Claimant stated he 
 
         offered to undergo a urine analysis but such a request was denied 
 
         by defendant employer.
 
         
 
              Claimant stated that with regard to employment opportunities 
 
         after his separation from employment with defendant "everything 
 
         sounded promising with the prospective employer until they 
 
         checked with all Aldi's."
 
         
 
              Pam Roddy, who identified herself as claimant's wife, 
 
         testified that after claimant came home from work on April 15, 
 
         1987, he was in a lot of pain as a result of the fall in the 
 
         freezer and that claimant immediately went to bed.  Mrs. Roddy 
 
         recalled that claimant was still in a great deal of pain the next 
 
         morning and that he has been in pain every day since with 
 
         complaints centering around his lower back, down his right leg 
 
         and numbness down the left leg.  Mrs. Roddy explained that 
 
         claimant, who was a hard worker and active person, is now fairly 
 
         sedentary and inactive.
 
         
 
              On cross-examination, Mrs. Roddy explained that while she 
 
         was working at a convenience store she got to know some of the 
 
         students who attended the chiropractic college in Davenport and 
 
         one of them asked for her assistance in doing some school work by 
 
 
 
                               
 
                                                         
 
         consenting to an examination.  Mrs. Roddy stated she sent 
 
         claimant for the examination and that he was not there for a 
 
         "visit" to seek medical attention on his own.  In reference to 
 
         joint exhibit E, Mrs. Roddy explained that under the 
 
         circumstances "they always say something is wrong with you."  
 
         Mrs. Roddy confirmed claimant's denial of ever having sought 
 
         previous medical treatment for his back.
 
         
 
              Mrs. Roddy denied any knowledge of claimant's alleged 
 
         marijuana use maintaining she did not try to get him to stop 
 
         smoking it, that there was never a problem in the family and that 
 
         they had no prior discussions concerning marijuana use.
 
         
 
              Steve Haight, who identified himself as a district 
 
         supervisor for defendant employer and as claimant's supervisor 
 
         from April 1987 until his discharge, testified that claimant was 
 
         generally an "average, satisfactory worker" who had received no 
 
         disciplinary actions during his employment.  Mr. Haight stated he 
 
         was aware of claimant's injury to his back and subsequent surgery 
 
         and that claimant had mentioned having "spasms" once in a while.  
 
         Mr. Haight denied that claimant's position with defendant 
 
         employer was in jeopardy due to this injury and testified that 
 
         claimant was discharged from his employment due to his use of 
 
         marijuana on the job.
 
         
 
              Mr. Haight stated that when a customer at another store 
 
         complained that claimant smelled like marijuana the company began 
 
         to look for evidence thereof.  Mr. Haight offered that in mid to 
 
         late March of 1988, a paper clip, knife and screwdriver were 
 
         found in the office which were sent for testing and found to have 
 
         marijuana residue on them.  Mr. Haight recalled that on March 26 
 
         in the early morning the office "reeked" of marijuana smoke and 
 
         that on this day and at that time claimant was the only one who 
 
         was working.  Mr. Haight also stated that the smell of marijuana 
 
         was present on claimant after claimant went to the bank.
 
         
 
              Mr. Haight stated that on April 15, 1988, he checked the 
 
         apron that was hanging on the wall in the office by turning the 
 
         pockets inside out and that he smelled marijuana and discovered 
 
         "seeds," acknowledging this substance was not tested.  Mr. Haight 
 
         explained that claimant was the only full-time employee, that the 
 
         part-time employee who also worked at the store was female and 
 
         that, pursuant to company policy, male employees wear aprons and 
 
         female employees wear smocks.  Mr. Haight recalled that claimant 
 
         was confronted on April 15, 1988 with the paper clip, 
 
         screwdriver, knife, seeds, smells and complaints "evidence," and 
 
         when asked about them claimant initially could not explain but 
 
         that claimant eventually did admit, with tears in his eyes, that 
 
         he had smoked marijuana at the store.
 
         
 
              Bruce Widbin, who identified himself as director of store 
 
         operations, testified he was first told of claimant's suspected 
 
         marijuana use when notified of Steve Haight's suspicion and that 
 
         he had advised Mr. Haight to keep his eyes open since there was 
 
         no concrete evidence of such use.  Mr. Widbin stated he 
 
                                                
 
                                                         
 
         participated in the discussion which culminated in claimant's 
 
         discharge from employment on April 15, 1988 and recalled that 
 
         claimant admitted having smoked marijuana on the job and on the 
 
         premises.  Mr. Widbin stated this conduct alone caused claimant's 
 
         discharge and that the company was not dissatisfied with 
 
         claimant's job performance since his performance "by and large, 
 
         was exemplary."
 
         
 
              Kim Patrick, who identified herself as a four year part-time 
 
         employee and assistant manager with defendant employer, testified 
 
         that both before and after claimant's injury it seemed to her she 
 
         was doing more than her share of the work.  Ms. Patrick stated 
 
         she never smoked marijuana at Aldi's and never wore an apron.  
 
         She acknowledged she had access to the office where the paper 
 
         clip, screwdriver, knife and apron were found.
 
         
 
              Medical records of James R. LaMorgese, M.D., of Cedar Rapids 
 
         Neurosurgeons, P.C., revealed he began treating claimant April 
 
         24, 1987 on referral from H. N. Polance, D.O., for evaluation of 
 
         low back and left leg pain.  Dr. LaMorgese reported that, after 
 
         reviewing the CT scan obtained by Dr. Polance, which indicated a 
 
         probable herniated lumbar disc at L4,5, he elected to initially 
 
         treat claimant conservatively with physical therapy and 
 
         nonsteroidal anti-inflammatory agents.  Dr. LaMorgese reported 
 
         that when claimant showed no improvement in his symptoms, 
 
         claimant underwent a lumbar laminectomy with removal of herniated 
 
         discs at L3-4 and L4-5 on May 27, 1987.  Dr. LaMorgese found 
 
         claimant to do well postoperatively and on August 4, 1987, 
 
         advised Dr. Polance: "The patient is doing quite well except for 
 
         some residual low back discomfort after he has been sitting for a 
 
         prolonged period of time.  The patient does not have any leg pain 
 
         at this point....The patient will be allowed to return back to 
 
         work on September 8th." (Joint Exhibit A, Page 5)  On February 
 
         15, 1988, Dr. LaMorgese wrote:  "Overall I feel that he has done 
 
         quite well though.  I feel that this patient has had a 10 per 
 
         cent permanent, partial disability as a body as a whole as the 
 
         result of his low back disk problem.  I would expect that the 
 
         prognosis for the future is good for this patient."  (Jt. Ex. A, 
 
         p. 4)  In June 1988, Dr. LaMorgese "strongly" recommended that 
 
         claimant not engage in jobs that had "prolonged" driving because 
 
         this "will aggravate his underlying back problem."  On September 
 
         14, 1988, Dr. LaMorgese reported that he last saw claimant on May 
 
         5, 1988, and that "patient is to call as needed.  He was advised 
 
         to stay away from work in which he has continous [sic] lifting.  
 
         Dr. indicated to him that if he is having back and leg pain on 
 
         occasion, that he would be put on a 50 lb. weight lifting 
 
         restriction."  (Jt. Ex. A, p. 2)  On August 22, 1989, Dr. 
 
         LaMorgese advised claimant's counsel that:
 
         
 
              Mr. Roddy as you know underwent lumbar disk surgery on 
 
              January 26, 1987, due to herniated disks at L3,4 and L4,5.  
 
              I feel that the patient's herniated disks are due to his 
 
              work. I do feel that this is a workman's compensation claim.  
 
              The patient as you know was rated at a 10 per cent 
 
              permanent, partial disability as a body as a whole in regard 
 
                                                
 
                                                         
 
                   to his surgery and subsequent recovery.  The patient's 
 
              restrictions for lifting were 50 lbs and he was to stay away 
 
              from work in which he would do continuous repetitive type 
 
              lifting, stooping, pulling, or pushing.  I feel that these 
 
              restrictions are related to his low back condition and his 
 
              workman's [sic] comp injury.
 
         
 
         (Jt. Ex. A, p. 1)
 
         
 
              Claimant was seen by John R. Walker, M.D., an orthopedic 
 
         specialist, in Waterloo, Iowa, on or about June 13, 1988.  Dr. 
 
         Walker opined to claimant's counsel in a letter of that date 
 
         that:
 
         
 
              This patient is extremely disabled.  Not only does he have a 
 
              lumbar problem but he also has a lot of dorsal problems and 
 
              his diagnoses are as follows:
 
         
 
                   1.) Sprains of the dorsal spine, basically at T-10, 
 
              T-11, T-12, L-1 and L-2.
 
         
 
                   2.) A severe sprain of L-3, L-4 with a markedly 
 
              positive instability sign.
 
         
 
                   3.) A discitis or a disc space infection following 
 
              surgery involving the 4th lumbar disc between the bodies of 
 
              L-4, L-5.
 
         
 
                   4.) Severe, extremely painful right sacroiliac sprain.
 
         
 
                   At this particular time, his temporary, partial 
 
              impairment is extremely high, probably approaching 80%.
 
         
 
         (Jt. Ex. D, pp. 5-6)
 
         
 
              Dr. Walker continued:
 
         
 
              He seems to be very well motivated.  He has a lot of 
 
              problems and he has a lot of pain and it is going to take a 
 
              great deal more treatment to get him well.  To begin with, I 
 
              have the following suggestions:
 
         
 
                   1.) I would put him in the hospital with traction and 
 
              physical therapy and a back exercise program, possibly a 
 
              TENS unit with proper medications and anti-inflammatory 
 
              medications.
 
         
 
                   2.) I would try to trace down the actual problem with 
 
              the disc space infection or discitis at L-4, L-5.
 
         
 
                   3.) I     would certainly inject on one or more 
 
              occasions the right sacroiliac joint with Carbocaine and 
 
              long and short acting Cortisone preparations such as 
 
              Aristospan and Celestone.  This can be repeated once or 
 
              twice or three times, depending on the result.  It should 
 
                                                
 
                                                         
 
                   knock out most of his right sacroiliac pain, at least on a 
 
              temporary basis. If, indeed, we do find that he gets some 
 
              temporary relief over a period of days and weeks and the 
 
              sacroiliac pain returns, then I would certainly submit him 
 
              or give him the opportunity to subject to a Smith-Peterson 
 
              intra-articular arthrodesis of the right sacroiliac joint.
 
         
 
                   In the end, he is certainly going to end up with some 
 
              permanent disability as far as the dorsal spine is 
 
              concerned, the right sacroiliac joint is concerned and of 
 
              course the lumbar spine is concerned as well.
 
         
 
         (Jt. Ex. D, p. 6)
 
         
 
              Dr. Walker concluded in that same report that:
 
         
 
                   I am sorry I cannot be of any further use as far as 
 
              putting final numbers on his permanent, partial impairment, 
 
              but until further proper therapy and treatment has been 
 
              administered the patient is in limbo and for practical 
 
              purposes is unable to perform any job except for the most 
 
              sedentary ones such as taking tickets at a movie theater.
 
         
 
         (Jt. Ex. D, P. 6-7)
 
         
 
              In July 1988, Dr. Walker opined that, without treatment, 
 
         claimant "will suffer a permanent, partial impairment amounting 
 
         to 60% of the body as a whole."  (Jt. Ex. D, p. 1)
 
         
 
              Vocational rehabilitation records of Owen Julius, Counselor, 
 
         revealed that claimant was referred to the Rehabilitation Agency 
 
         by Wendy Schramberger, of Job Service, around May 1988.  During 
 
         the initial appointment, it would appear from the counselor's 
 
 
 
                               
 
                                                         
 
         notes that claimant was given a referral to Quality Chef Foods, 
 
         and on June 1, 1988, it was reported that:
 
         
 
                   The job lead that I provided to him with Quality Foods 
 
              here in Cedar Rapids, he did not go out and have an 
 
              interview.  They've called him back.  It was running a sales 
 
              route, and it paid $5 per hour plus 3 percent commission.  
 
              He indicated that he would rather have around $6 to $6.50 an 
 
              hour, and since it was not an established route, he did not 
 
              accept the offer.
 
         
 
         (Claimant's Exhibit 5, Page 10)
 
         
 
              The counselor wrote on the same date that:
 
         
 
                   Joe is a younger worker, twenty-seven years of age.  He 
 
              is a high school graduate with some college.  Basically, his 
 
              work record is excellent, except at his last place of 
 
              employment, where his job duties were handled 
 
              satisfactorily. According to the employer, he got to smoking 
 
              marijuana on the job, which he vehemently denies.  The 
 
              bottom line is he isn't working there anymore, and he is 
 
              going to have to learn how to deal with this positively.  He 
 
              can be on his feet most of the day working.  Sitting isn't 
 
              really restricted from pre-surgery.  It seems like he wants 
 
              to go to work.  He is an individual with at least of average 
 
              intellectual ability to above, as he has a 2.8 GPA in high 
 
              school and an ACT composite of 23.  It does appear he can 
 
              benefit in terms of employability from the provision of 
 
              Vocational Rehabilitation services.
 
         
 
         (Jt. Ex. 5, p. 8)
 
         
 
              With the assistance of the Vocational Rehabilitation Agency, 
 
         claimant enrolled in the electronics engineering technology 
 
         program at Kirkwood Community College in August of 1988.  On 
 
         October 19, 1988, it was reported that:  "With respect to his 
 
         schooling, he originally signed up for four courses.  He did 
 
         withdraw from the Comp I course because he mentioned it is very 
 
         difficult in doing the electronics technician theoretical 
 
         courses. He is maintaining grades of A's and B's."  (Cl. Ex. 5, 
 
         p. 4) However, some two months later Mr. Julius indicated that 
 
         claimant had told him he had taken F's on everything, and in 
 
         January it was revealed claimant had been 48 hours too late to 
 
         withdraw from his classes.
 
         
 
              The records reflect claimant's file was closed in 
 
         approximately March 1989 when it appeared that "we've gone as far 
 
         as we can with his vocational rehabilitation, at least 
 
         presently." (Cl. Ex. 5, P. 2)
 
         
 
                      APPLICABLE LAW AND ANALYSIS
 
         
 
              An employee is entitled to compensation for any and all 
 
         personal injuries which arise out of and in the course of the 
 
                                                
 
                                                         
 
         employment.  Section 85.3(1).
 
         
 
              The claimant must prove by a preponderance of the evidence 
 
         that his injury arose out of and in the course of his employment. 
 
         Musselman v. Central Telephone Co., 261 Iowa 352, 154 N.W.2d 128 
 
         (1967).
 
         
 
              In the course of employment means that the claimant must 
 
         prove his injury occurred at a place where he reasonably may be 
 
         performing his duties.  McClure v. Union, et al., Counties, 188 
 
         N.W.2d 283 (Iowa 1971).
 
         
 
              Arising out of suggests a causal relationship between the 
 
         employment and.the injury.  Crowe v. DeSoto Consolidated School 
 
         District, 246 Iowa 402, 68 N.W.2d 63 (1955).
 
         
 
              The claimant has the burden of proving by a preponderance of 
 
         the evidence that the injury of April 15, 1987 is causally 
 
         related to the disability on which he now bases his claim.  
 
         Bodish v. Fischer. Inc., 257 Iowa 516, 133 N.W.2d 867 (1965).  
 
         Lindahl v. L.O. Boggs, 236 Iowa 296, 18 N.W.2d 607 (1945).  A 
 
         possibility is insufficient; a probability is necessary.  Burt v. 
 
         John Deere Waterloo Tractor Works, 247 Iowa 691, 73 N.W.2d 732 
 
         (1955).  The question of causal connection is essentially within 
 
         the domain of expert testimony.  Bradshaw v. Iowa Methodist 
 
         Hospital, 251 Iowa 375, 101 N.W.2d 167 (1960).
 
         
 
              Expert medical evidence must be considered with all other 
 
         evidence introduced bearing on the causal connection.  Burt, 247 
 
         Iowa 691, 73 N.W.2d 732.  The opinion of experts need not be 
 
         couched in definite, positive or unequivocal language.  Sondag v. 
 
         Ferris Hardware, 220 N.W.2d 903 (Iowa 1974).  However, the expert 
 
         opinion may be accepted or rejected, in whole or in part, by the 
 
         trier of fact.  Id. at 907.  Further, the weight to be given to 
 
         such an opinion is for the finder of fact, and that may be 
 
         affected by the completeness of the premise given the expert and 
 
         other surrounding circumstances.  Bodish, 257 Iowa 516, 133 
 
         N.W.2d 867.  See also Musselman 261 Iowa 352, 154 N.W.2d 128.
 
         
 
              The initial issue presented for resolution is whether or not 
 
         claimant sustained an injury which arose out of and in the course 
 
         of his employment which is the cause of the disability on which 
 
         he now bases his claim.  Why this is an issue is a puzzle to this 
 
         deputy since, in their answer to claimant's petition, defendants 
 
         admit that claimant was injured on April 15, 1987 and that 
 
         claimant was injured as claimant alleged in his petition. 
 
         Defendants never amended their answer.  Further, the evidence is 
 
         uncontroverted that on April 15, 1987 claimant fell in the 
 
         freezer sustaining an injury.  Defendants' own witness, Bruce 
 
         Widbin, director of store operations, does not dispute that 
 
         claimant was injured in the freezer at Aldi's while on the job.  
 
         Clearly, claimant has met his burden that on April 15, 1987 he 
 
         sustained an injury which arose out of and in the course of his 
 
         employment.
 
         
 
                                                
 
                                                         
 
              As cited above, the question of causal connection is 
 
         essentially within the domain of expert testimony.  Dr. 
 
         LaMorgese, who was claimant's treating physician, has opined that 
 
         claimant's injury, subsequent treatment, and current work 
 
         restrictions are related to his employment.  Dr. Walker, whose 
 
         opinion will be discussed later in this decision in greater 
 
         detail, does not appear to contradict such a conclusion.  
 
         Defendants appear to place great emphasis on joint exhibit E, a 
 
         Palmer College of Chiropractic memorandum dated October 7, 1985, 
 
         which states claimant was under the care of a chiropractor and 
 
         chiropractic student extern from October 7 to October 8 for low 
 
         back pain with sciatic involvement.  Claimant denied the truth of 
 
         this statement. Without commenting at this time on claimant's own 
 
         credibility, this exhibit fails to call into question the matter 
 
         of causal connection.  It is clear to this deputy that the work 
 
         injury of April 15, 1987 is the cause of both temporary and 
 
         permanent disability and the cause of the disability on which 
 
         claimant now bases his claim.
 
         
 
              Iowa Code section 85.27 provides:
 
         
 
                   The employer, for all injuries compensable under this 
 
              chapter.or chapter 85A, shall furnish reasonable surgical, 
 
              medical, dental, osteopathic, chiropractic, podiatric, 
 
              physical rehabilitation, nursing, ambulance and hospital 
 
              services and supplies therefor and shall allow reasonably 
 
              necessary transportation expenses incurred for such 
 
              services.
 
         
 
              As the undisputed medical evidence establishes claimant 
 
         suffered herniated discs at L3,4 and L4,5 when he slipped and 
 
         fell at work on April 15, 1987 and, further, that all the 
 
         treatment which claimant has received has been in connection with 
 
         his injury.  Claimant is entitled to medical benefits as set out 
 
         above.  The only disputed expenses submitted by claimant is 
 
         mileage to and from the doctor totaling 222 miles.  As Iowa Code 
 
         section 85.27 requires that the employer shall be liable for the 
 
         reasonably necessary transportation expenses incurred for medical 
 
         services, defendants are liable for mileage expense for $46.62.
 
         
 
              Notwithstanding defendants' needless dispute over the injury 
 
         and the issue of causal connection, the essential question for 
 
         determination is the extent of claimant's permanent partial 
 
         disability, if any.
 
         
 
              Dr. LaMorgese opined claimant has sustained a permanent 
 
         partial "disability" of 10 percent to the body as a whole as a 
 
         result of the.work injury.  Although Dr. LaMorgese refers to 
 
         "disability" as opposed to "impairment," it does not appear as 
 
         though any attempt is made by the doctor to invade the province 
 
         of the industrial commissioner by his reference to "disability."  
 
         Dr. LaMorgese was claimant's treating physician and had the 
 
         opportunity to follow claimant's progress, including 
 
         symptomatology and complaints.
 
         
 
                                                
 
                                                         
 
              Dr. Walker, on the other hand, finds claimant to have a 
 
         "temporary, partial impairment...approaching 80 percent" and 
 
         opined that claimant, without treatment, "will" suffer a 
 
         permanent partial impairment of 60 percent to the body as a 
 
         whole.  Dr. Walker's opinion is somewhat suspect to the 
 
         undersigned and it is determined that it is not entitled to as 
 
         much weight as the opinion of Dr. LaMorgese.  First, claimant 
 
         presents himself to Dr. Walker with a myriad of complaints which 
 
         are not reflected as having been reported to Dr. LaMorgese in his 
 
         records.  Secondly, Dr. Walker states:  "He is extremely relieved 
 
         to find someone who believes there is something wrong with him.  
 
         (His wife has apparently lost all patience with him and Dr. 
 
         LaMorgese is puzzled as to why he is not getting more relief from 
 
         the surgery)."  (Jt. Ex. D, p. 4)  No reference is made in Dr. 
 
         LaMorgese's records over any puzzlement as to why claimant is not 
 
         better.  Indeed, Dr. LaMorgese in his reports continually refer 
 
         to claimant's good recovery.  Further, Dr. Walker opined claimant 
 
         is unable to perform any job except for the most sedentary ones 
 
         while claimant is presenting himself to employers on applications 
 
         as having "no disability" (depending on the job), and while he is 
 
         seeking employment (at least for the purpose of securing 
 
         unemployment insurance benefits) that would be contra-indicated 
 
         even by the more lenient restrictions imposed by Dr. LaMorgese.  
 
         In short, it would appear that what claimant told Dr. Walker or 
 
         what Dr. Walker finds is not what claimant has said in the past 
 
         or was saying at the present time.  Therefore, the entire process 
 
         is somewhat suspect.
 
         
 
              Dr. Walker saw claimant on one occasion and one occasion 
 
         alone.  His rating of impairment, based on this deputy's 
 
         experience, is without credibility.
 
         
 
              Notwithstanding the above, it cannot be the subject of any 
 
 
 
                      
 
                                                         
 
         dispute that claimant has sustained a permanent partial 
 
         impairment as a result of the work injury of April 15, 1987, at 
 
         least to the minimum extent of 10 percent as found by Dr. 
 
         LaMorgese.
 
         
 
              Functional impairment is an element to be considered in 
 
         determining industrial disability which is the reduction of 
 
         earning capacity, but consideration must also be given to the 
 
         injured employee's age, education, qualifications, experience and 
 
         inability to engage in employment for which he is fitted.  Olson 
 
         v. Goodyear Service Stores, 255 Iowa 1112, 125 N.W.2d 251 (1963). 
 
         Barton v. Nevada Poultry, 253 Iowa 285, 110 N.W.2d 660 (1961).
 
         
 
              A finding of impairment to the body as a whole found by a 
 
         medical evaluator does not equate to industrial disability.  This 
 
         is so as impairment and disability are not synonymous.  Degree of 
 
         industrial disability can in fact be much different than the 
 
         degree of impairment because in the first instance reference is 
 
         to loss of earning capacity and in the latter to anatomical or 
 
         functional abnormality or loss.  Although loss of function is to 
 
         be considered and disability can rarely be found without it, it 
 
         is not so that a degree of industrial disability is 
 
         proportionally related to a degree of impairment of bodily 
 
         function.
 
         
 
              Factors to be considered in determining industrial 
 
         disability include the employee's medical condition prior to the 
 
         injury, immediately after the injury, and presently; the situs of 
 
         the injury, its severity and the length,of healing period; the 
 
         work experience of the employee prior to the injury, after the 
 
         injury and potential for rehabilitation; the employee's 
 
         qualifications intellectually, emotionally and physically; 
 
         earnings prior and subsequent to the injury; age; education; 
 
         motivation; functional impairment as a result of the injury; and 
 
         inability because of the injury to engage in employment for which 
 
         the employee is fitted. Loss of earnings caused by a job transfer 
 
         for reasons related to the injury is also relevant.  These are 
 
         matters which the finder of fact considers collectively in 
 
         arriving at the determination of the degree of industrial 
 
         disability.
 
         
 
              There are no weighting guidelines that indicate how each of 
 
         the factors are to be considered.  There are no guidelines which 
 
         give, for example, age a weighted value of ten percent of the 
 
         total value, education a value of fifteen percent of total, 
 
         motivation - five percent; work experience - thirty percent, etc. 
 
         Neither does a rating of functional impairment directly correlate 
 
         to a degree of industrial disability to the body as a whole.  In 
 
         other words, there are no formulae which can be applied and then 
 
         added up to determine the degree of industrial disability.  It 
 
         therefore becomes necessary for the deputy to draw upon prior 
 
         experience, general and specialized knowledge to make the finding 
 
         with regard to degree of industrial disability.  See Peterson v. 
 
         Truck Haven Cafe, Inc., (Appeal Decision, February 28, 1985); 
 
         Christensen v. Hagen, Inc.,.(Appeal Decision, March 26, 1985).
 
                                                
 
                                                         
 
         
 
              It appears appropriate at this time to discuss in more 
 
         detail both claimant's Motion in Limine (which was overruled at 
 
         the time of hearing) and claimant's credibility.  Claimant sought 
 
         to prevent defendants from presenting evidence or reference to 
 
         claimant's alleged use of marijuana.  Claimant would assert on 
 
         the one hand that he was discharged from his employment due to 
 
         his back injury and on the other hand seek to prevent defendants 
 
         from presenting evidence on any other possible reason for 
 
         claimant's separation from employment.  Claimant cannot have it 
 
         both ways. Defendant's evidence on its reasons for discharging 
 
         claimant must succeed or fail on its own merits as it would 
 
         clearly be an abuse of discretion not to allow it.  Therefore, 
 
         claimant's Motion in Limine is overruled.
 
         
 
              To say the least, claimant's credibility was severely 
 
         impaled on cross-examination.  More specifically, claimant showed 
 
         himself to be less than truthful on certain issues which are of 
 
         no real consequence to the outcome of this case, but cause one to 
 
         call into question whether he is being less than truthful as well 
 
         on those things important to the disposition of the case.  For 
 
         example, claimant originally denied having received any offers of 
 
         employment outside with Colonial Bread and his current employment 
 
         until presented with information on Quality Chef Foods, at which 
 
         time claimant recalled the contact.  Claimant maintains that he 
 
         did not consider it a job "offer," however, because it was not 
 
         for an established route.  Yet, the records of the vocational 
 
         rehabilitation agency, made concurrent with the events, reflect 
 
         that claimant wanted more money and that he did not accept the 
 
         employment.  Clearly, this was a job offer and there was no 
 
         reasonable basis for claimant to deny it to have been a job offer 
 
         even if he had not recalled the initial contact with Quality 
 
         Foods.
 
         
 
              Then, there is the matter of his employment application with 
 
         Colonial Bread.  Claimant told defendants' counsel that he put 
 
         "no disability" on the application because he was not applying 
 
         for a driving position.  Yet, the application, by claimant's own 
 
         eventual admission, is completely contrary.  While it may not be 
 
         understandable that claimant, in his zeal to secure employment, 
 
         did not wish to disclose to an employer the fact that he had had 
 
         a back injury, claimant does not use this as an excuse.  Claimant 
 
         was clearly applying for a driving position, a position he 
 
         asserts he cannot do both by his own restrictions and by medical 
 
         restrictions.  At the same time, claimant admits that on other 
 
         employment applications he indicated he had had a previous back 
 
         injury.  Claimant's stories are simply inconsistent.  There is 
 
         also the matter of claimant's grades in high school at St. 
 
         Ambrose and at Kirkwood Community College.  While it may be 
 
         understandable that claimant would not want to disclose a 
 
         semester of "F's," claimant's misrepresentation cannot be taken 
 
         lightly.
 
         
 
              As indicated previously, none of these things taken alone 
 
         would make any indentation on one's credibility.  Yet, pieced 
 
                                                
 
                                                         
 
         together and placed between directly conflicting testimony, 
 
         particularly on the issue of discharge, it cannot help but have 
 
         an effect.  The undersigned concludes that the greater weight of 
 
         evidence establishes that claimant was discharged from his 
 
         employment for reasons unrelated to his injury and that, as a 
 
         consequence, defendants cannot be found liable for claimant's 
 
         entire loss of earnings and defendants cannot be penalized for 
 
         any failure to provide claimant with any employment.  The greater 
 
         weight of evidence establishes to the satisfaction of the 
 
         undersigned that, but for the claimant's own conduct in violation 
 
         of the employer's rules, claimant would have retained his 
 
         employment with defendant employer.
 
         
 
              Claimant has work experience as a grocery store manager, a 
 
         mixer operator with Wonder Bread, an assistant manager, and as a 
 
         night crew chief/frozen dairy manager.  Claimant, at age 28, is a 
 
         high school graduate with some college experience who appears to 
 
         the undersigned to be of at least average, if not somewhat above 
 
         average, intelligence, if claimant solely judged by grades (for 
 
         classes completed and test scores).  Claimant has restrictions on 
 
         his employability which would prohibit him from engaging in at 
 
         least some of the work for which he is fitted by experience. 
 
         However, the record shows that claimant was able to return to 
 
         work subsequent to his release and able to perform the job to the 
 
         satisfaction of the employer.  Claimant now presents that he had 
 
         a great deal of difficulty doing the job which is somewhat 
 
         understandable in light of the restrictions.  Yet, what is 
 
         bothersome is that claimant had a clear understanding with Dr. 
 
         LaMorgese that he should return to see him if problems developed. 
 
         Claimant intermittently stated his condition had "stalemated," 
 
         and was worse and yet never availed himself with Dr. LaMorgese's 
 
         care or offer of further care.  Consequently, claimant's 
 
         credibility on the mundane effects his credibility on the 
 
         important.
 
         
 
              Considering then all the elements of industrial disability, 
 
         it is found that claimant, as a result of the injury of April 15, 
 
         1987, has sustained a permanent partial disability of 15 percent 
 
         for industrial purposes entitling him to 75 weeks of permanent 
 
         partial disability benefits.
 
         
 
                            FINDINGS OF FACT
 
         
 
              Wherefore, based on all the evidence presented, the 
 
         following findings of fact are made:
 
         
 
              1.  On April 15, 1987, while carrying a case of turkeys into 
 
         the freezer, claimant fell causing the case of turkeys and 
 
         another case of product to land on top of him.
 
         
 
              2.  Claimant sustained an injury on April 15, 1987, which 
 
         rose out of and in the course of his employment.
 
         
 
              3.  As a result of the injury, claimant underwent a 
 
         laminectomy for herniated disc at L3,4 and L4,5.
 
                                                
 
                                                         
 
         
 
              4.  Claimant's medical treatment was causally connected to 
 
         the injury.
 
         
 
              5.  Claimant is entitled to all medical expense and related 
 
         expenses as provided by Iowa Code section 85.27.
 
         
 
              6.  As a result of the injury of April 15, 1987, claimant 
 
         sustained a permanent partial impairment.
 
         
 
              7.  Claimant's credibility is questionable and suspect.
 
         
 
              8.  Claimant's capacity to earn has been hampered as a 
 
         result of the injury.
 
         
 
              9.  Claimant lost his employment with defendant for reasons 
 
         unrelated to the injury.
 
         
 
              10.  Had claimant not lost his employment for reasons 
 
         unrelated to the injury, the greater weight of evidence 
 
         establishes claimant would have retained his employment as the 
 
         employer had expressed no dissatisfaction with the claimant's job 
 
         performance.
 
         
 
              11.  Claimant, age 28, is a high school graduate with some 
 
         college course work completed, and is of at least average 
 
         intellectual ability.
 
         
 
              12.  Claimant has restrictions on his employability which 
 
         would preclude him from engaging in some of the work for which he 
 
         is fitted by experience and training.
 
         
 
              13.  Claimant has sustained a permanent partial disability 
 
 
 
                            
 
                                                         
 
         of 15 percent for industrial purposes as a result of the injury 
 
         of April 15, 1987.
 
         
 
                             CONCLUSIONS OF LAW
 
         
 
              Wherefore, based on the principles of law previously stated, 
 
         the following conclusions are made:
 
         
 
              1.  Claimant sustained an injury on April 15, 1987, which 
 
         arose out of and in the course of his employment.
 
         
 
              2.  The injury of April 15, 1987 is the cause of the 
 
         disability on which claimant now bases his claim.
 
         
 
              3.  Claimant is entitled to all reasonable and necessary 
 
         medical expenses as provided by Iowa Code section 85.27.
 
         
 
              4.  Claimant has sustained a permanent partial disability of 
 
         15 percent for industrial purposes.
 
         
 
                                      ORDER
 
         
 
              THEREFORE, it is ordered:
 
         
 
              Defendants.shall pay unto claimant seventy-five (75) weeks 
 
         of permanent partial disability benefits at the stipulated rate 
 
         rate of two hundred seventy-one and 74/100 dollars ($271.74) 
 
         commencing September 8, 1987.
 
         
 
              Defendants shall receive credit for all permanent partial 
 
         disability benefits previously paid.
 
         
 
              Benefits which have accrued shall be paid in a lump sum 
 
         together with statutory interest thereon pursuant to Iowa Code 
 
         section 85.30.
 
         
 
              Defendants shall pay disputed medical expenses totaling 
 
         forty-six and 62/100 dollars ($46.62).
 
         
 
              Costs of this action are assessed against defendants 
 
         pursuant to Division of Industrial Services Rule 343-4.33.
 
         
 
         
 
              Signed and filed this 23rd day of October, 1989.
 
         
 
         
 
         
 
         
 
         
 
         
 
                                            DEBORAH A. DUBIK
 
                                            DEPUTY INDUSTRIAL 
 
                                            COMMISSIONER
 
         
 
         Copies to:
 
                                                
 
                                                         
 
         
 
         Mr Thomas J. Currie
 
         Attorney at Law
 
         3401 Williams Blvd SW
 
         P 0 Box 998
 
         Cedar Rapids IA  52406
 
         
 
         Mr Craig A Levien
 
         Attorney at Law
 
         600 Union Arcade Bldg
 
         Davenport IA  52801
 
 
 
 
 
         
 
         
 
 
            
 
 
 
 
 
 
 
 
 
 
 
                                            51100 - 51108 - 1803
 
                                            Filed October 23, 1989
 
                                            DEBORAH A. DUBIK
 
         
 
                    BEFORE THE IOWA INDUSTRIAL COMMISSIONER
 
         
 
         
 
         JOSEPH RODDY,
 
         
 
              Claimant,
 
         
 
         vs.                                        File No. 850942
 
         
 
         ALDI, INC.,
 
                                                A R B I T R A T I 0 N
 
              Employer,
 
                                                    D E C I S I 0 N
 
         and
 
         
 
         KEMPER INSURANCE,
 
         
 
              Insurance Carrier,
 
              Defendants.
 
         
 
         
 
         51100
 
         
 
              Although listed as an issue, there was no dispute claimant 
 
         sustained an injury arising out of and in the course of his 
 
         employment.  Defendant's answer to petition and own witnesses 
 
         admitted claimant's injury as alleged in the petition.
 
         
 
         51108
 
         
 
              There was no dispute on causation although again listed as 
 
         an issue.  Both physicians who testified causally connected 
 
         claimant's disability and his injury.
 
         
 
         1803
 
         
 
              Claimant found to have sustained 15 percent permanent 
 
         partial disability for industrial purpose.  Claimant underwent 
 
         two level laminectomy and had impairment ratings from 10 to 60 
 
         percent. Claimant was a grocery store manager and lost his 
 
         employment for reasons unrelated to the injury.  All of 
 
         claimant's prior work experience centered around grocery stores 
 
         and even the most liberal medical restrictions would prohibit 
 
         such work absent accommodations by the employer.  Credibility 
 
         problems noted.